Postponing Decisions: The Lame Duck 96th Congress

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127 September 30, 1980 POSTPONING DECISIONS 96TH THE CONGRESS
INTRODUCTION LAME-DUCK The 96th Congress will recess the first week
of October and reconvene--after the elections on November 12 for
its first post election, lame-duck session since 19

74. Not one of the major appropriations bills has been passed by
both houses, and it seems unlikely that conference committees will
complete work on any of them before the beginning of fiscal year
1981 on October 1. Before recessing, Congress must put the entire
vbudget of the government on a continuing resolution to carry over
current levels of funding until the lame-duck session.

Major legislation that will be considered by the lame-duck
Congress include the second budget resolution with its required
vote on a b udget deficit, the revision of the criminal code, the
fair housing bill, the environmental llsuperfundlf bill, possibly
three different versions of a tax cut, and the health manpower
authorization bill. Secretary of Defense Brown has called for a
debate o n the SALT treaty during the lame-duck session. Addition
ally, a salary increase for members of Congress might be considered
as an amendment to the legislative appropriations bill.

This Backgrounder explores the history of past lame-duck
sessions of Congress, the effect and intent of the Twentieth
Amendment, and certain trends in the contemporary workload of
Congress.

SESSIONS OF CONGRESS AND THE TWENTIETH AMENDm The Constitutional
Convention of 1787 reported its agreement on the proposed
Constitution to the Articles of Confederation Congress on September
17, 17

87. That same Congress unanimously resolved on September 28 to
send the Constitution to the states 2 for ratification which was
completed by the ratification of New Hampshire on June 21, 17

88. Subsequently, the last Articles of Confederation Congress
issued a call for the presidential and congressional elections, and
voted to have all the newly-elected federal officers begin their
terms on March 4, 17

89. Thereafter in order to allow senators, re presentatives, and
the President the opportunity to complete their full constitutional
terms between elections, March 4, although not required by the
Constitu tion, became the permanent date on which all subsequent
Congresses and presidential terms began.

Article I, Section 4 of the Constitution required that every
Congress assemble annually on the first Monday in December Ilunless
they (i.e., the Congress) shall by law appoint a different
day."

By May 20 1820, no less than eighteen acts were passed by Co
ngress providing for another annual assembly day. After that time
Congress decided to reinstate permanently the first Monday of
December as.its required assembly 'day. A Congress, as prdvided by
the Constitution, lasted for two years legislatures to deter m ine
the dates of elections for senators and representatives subject to
the approval of Congress the Second Congress, exercising its
authority under Article 11 Section 1 of the Constitution, had
provided that the election of presidential electors be held a t the
beginning of November every fourth year. Consequently, many state
legislatures, but not all decided that the election'of
representatives would be held on the same day It will be remembered
that senators were not selected by popular vote at the time C o
ngress provided by statute that the election of senators
representatives, and presidential electors all be held on the
Tuesday after the first Monday in November,lI a. requirement that
is still law [2 U.S.C. 1(1 2 U.S.C. 1(7 3 U.S.C. 11 Article I,
Section 4 of the Constitution allows the state In 1792 Much later
in American history Thus, after 1820, this mixture of
constitutional and statutory requirements always produced one
lame-duck session for every two-year Congress..

Congressional elections were held in November of every
even-numbered year. Since the newly-elected Congress did not take
office until March 4; it was the old Congress, with its defeated
and retired members, that convened for the required December
assembly. This Congress typically met unt il some date in February
when it adjourned sine die (final adjournment of a two-year
Congress The new Congress would take office on March 4, but
normally would not meet until the following December.

Thus, newly-elected members of Congress did not get an op
portunity to vote on any legislation until thirteen months after
their election. The second session of Congress that commenced in
December of the year following an election year typically would
continue until June or July when Congress would adjourn sine d ie
in preparation for the next elections in November. 3 The Twentieth
Amendment, rat,fied .in 1933, completely revamped the schedule of
congressional sessions. Section One of the Amendment provided that
the terms of the President and Vice President begin on January 20
following every presidential election year, rather than March 4 and
that a new Congress begin on January 3, rather than March 4,
following congressional elections.

Section Two of the Amendment changed the required annual
assembly of Congress from December to January 3 of each year hand
According to the Report of the Senate Judiciary Committee Senate
Report 72-26 of December 1931), the Twentieth Amendment
accomplished three objectives The three other sections of the
Amendment are not relevant t o the issue at 1) It reduced the
interval between the elections and the date qnewly-elected member
of Congress could begin to act on legislation from thirteen to two
months 2) By establishing the same date, January 3, as the commence
ment of a new Congres s and of every annual session of Congress, it
abolished the requirement of bi-annual lame-duck sessions of
Congress 3) It did away'with the possibility that a lame-duck House
of Representatives could elect a new President if no presidential
candidate had r e ceived a majority of elec toral votes the
preceding November ment had required the House to elect a new
President before the fourth day of March,I' the date of the com
mencement of the new presidential term. Since the newly-elected
Congress also began its term on March 4 the duty to elect a new
President necessarily fell on the old, lame-duck Congress Before
the Twentieth Amendment, a two-year Congress began with a short,
lame-duck session (December-February) and ended with a long session
(December-June/Ju l y reversed this. It allowed the Congress to
meet for as long as possible in its first session, which today
normally extends from January to December, in order that it could
complete all work well before the elections in the second, shorter
session. The fr a mers of the Twentieth Amendment originally
intended that the second, shorter session would adjourn sine die by
July 30 of every election year from 1935 until the early 1960s when
its increasing'determination to pass more and more laws began to
make an ear l y adjournment impossible lame-duck sessions of
Congress since the amendment went into effect on January 3, 1935
The Twelfth'Amend The Twentieth Amendment C0ngres.s largely
complied with this intention Despite the Twentieth Amendment, there
have been eight i 4 1940s In 1939, President Roosevelt, pursuant to
the authority vested in him by Section 3 of Article I1 of the
Constitution convened a special session of Congress (September
21-November 3 following the sine die adjournment of the first
session of the 76 th Congress on August 5. The special session
passed the Neutral ity Act of 1939 a bill concerning the escalating
world war The normal 1940 session thus became the third session of
the 76th Congress, and it did not adjourn sine die until January 3,
1941.

After the 1940 elections, this third session reconvened on
November 15, 1940, met continuously until adjournment, but passed
no major legislation the budget and all appropriations bills having
been completed by June.

The second session of the 77th Congres s, meeting in 1942 after
the United States had entered the war, reconvened on November 9
after the 1942 elections, met continuously until adjourning sine
die on December 16, but passed only one major piece of legislation
a bill providing for the conscript ion of 18- and 19-year-old men.
The war budget had been taken care of in June.

The second session of the 78th Congress, another war Congress
reconvened on November 14 after the 1944 elections, and met
continuously until adjourning sine die on December 19 m ajor
legislation to pass the Congress was a supplemental appropri ations
bill, the purpose of which was to prepare the domestic economy for
the end of the war The only The second session of the 80th Congress
did not officially adjourn sine die until Decem ber 31, 1948, but
it was in recess fromAugust 7, 1948, until that date and thus
conducted lame-duck business 1950 The post-election extension of
the second session of the 81st Congress was entirely related to the
Korean War, which began in June of 19

50. C ongress went into an election recess on September 23 with
the intention of reconvening on November 27 to-consider passage of
a special wartime excess profits tax. But Congress reacted to the
November 26 Chinese intervention into the war by meeting in cont
inuous session from November 27 to January 2 1951, and passing
several emergency war measures, including the excess profits tax
and a new defense appropriations bill. I 1954 In 1954, the House
adjourned sine die on August

20. The I Senate met in a special executive session after the
elections to consider the condemnation of Senator Joseph McCarthy
and adjourned sine die on December 2 5 On October 14, 1970, the
91st Congress recessed, reconvening November 16 for the first joint
lame-duck session since 1950 Before adjournment sine die on January
2, 1971, the House met for 24 post-election days, while the Senate
met for 26 post-election days. The major reasons for the lame-duck
session were the Vietnam War and the antagonisms between a
Republican President Ni xon, and'a Democrat-controlled
Congress.

The Senate initiated the first significant attempt'since World
War I1 to challenge the President's authority over foreign and
military policy. Before the November elections, the Senate had
spent seven weeks debating the Cooper-Church Amendment to restrict
U.S. military operations in Cambodia and six weeks debating various
Vietnam-related provisions ofsthe defense author ization bill. The
House passed all but one of the fifteen major appropriations bills
before the e l ection recess, but the Senate put off action on more
than 75 percent of federal government expenditures (including the
appropriations bills for the Depart ments of Defense, HEW-Labor,
Foreign Assistance HUD, and Trans portation) to the post-election
sessi on.

The lame-duck session saw Lhe final passage by both Houses of
eight of the fifteen major appropriations bills (six months after
the beginning of the new fiscal year on June l including those for
the Departments of Defense and HEW-Labor. The 91st Congre ss had
been the first Congress to pass significant federal laws concerning
the environment, and the lame-duck session saw the culmination of
this activity with the killing of funds for the development of the
supersonic transport (SST an amendment to the D e partment of
Transportation appropriations bill in the post-election session:
the Cooper-Church Amendment, the repeal of the Gulf of Tonkin
resolution, a vastly expanded food stamp- plan, the government's
first family planning program, the first major occu p ational
safety law, and the far-reaching clean air law with its requirement
of pollution free automobiles by 1975 Much additional legislation
of significance also was passed The post-election session of the
91st Congress met with forty-nine representative s and eleven
senators who either had been defeated at the polls or who had
retired. During the lame duck session 72 recorded votes were taken
in the House and 68 in the Senate. Attendance at recorded votes was
76 percent in the House and 78 percent in the S enate. This
compared to an overall 77 percent House and 80 percent Senate
attendance record for the entire year (January-December If recorded
votes can be con sidered an indication of congressional workload,
then the House Attendance records for entire ye ar calculated by
Congfessional Quarterly.

Lame-duck session attendance records by The Heritage Foundation
6 conducted 27 percent of its business (71 of 266 total recorded
votes for the whole year) during the lame-duck session, while the
Senate conducted 16 percent of its business (68 of 418) during that
period. The 1970 elections did not change the composition of
Congress significantly. The Democrats increased their member ship
in the House from 243 to 254, while their membership in the Senate
declined fro m fifty-seven to fifty-four 1974 After recessing on
October 17, 1974, the second session of the 93rd Congress
reconvened on November 18. sine die on December 20, the House met
for 18 lame-duck legislative days, while the Senate met for 21 days
Before adjou r nment Watergate and its effects dominated the second
session of the 93rd Congress and was the major reason why a
post-election session became necessary. Prior to the November
elections of 1974, national politics were dominated by the
impeachment hearings o f the House Judiciary Committee, the
resignation of President Nixon, the swearing-in of President Ford,
and the nomination of Nelson Rockefeller to be Vice President.
Throughout these events what amounted to a constitutional struggle
occurred between the p residency and the Congress. The struggle was
joined in the first session of the 93rd Congress, 1973, when
Congress passed a law restricting U.S. bombing in Indochina and
also passed, over President Nixon's veto, a bill restricting the
President's power to wage war. In 1974, Congress continued the
strengthening of its authority by enacting the law providing for
public financing of presidential campaigns and by passing the
Budget Control and Impoundment Act thereby winning what had become
an intense struggle with Nipon'over control of federal
expenditures.

After taking office in August, President Ford enjoyed no better
relations with Congress. From August through the end of the
lame-duck session, Ford vetoed twenty-four bills. Congress overrode
four of these vetos, the most overrides since 1948.

Ford's nomination on August 20 of Nelson Rockefeller to be Vice
President initiated a new battle with Congress. Under the 25th
Amendment to the Constitution, Rockefeller had to be confirmed by
both houses of Congress. The confirmation process turned into a
prolonged, high-visibility affair, the major event of the lame-duck
session, and was not completed until December 19.

Congress completed action on almost all money legislation before
the elections, although the appr opriations bills for HEW-Labor and
military construction were passed in final form only in the
lame-duck session the lame-duck session was very much concerned
with economics three major appropriations bills were passed as
attempts to counter the deep rece s sion of 1974 Besides the
Rockefeller nomination, 7 The membership of the lame-duck session
of the 93rd Congress included ninety-two representatives and eleven
senators who either had retired or had been defeated at the polls.
The total of 103 lame-duck me m bers of Congress represented nearly
20 percent of the entire membership. The 1974 congressional
elections during which Watergate was a major issue, were calamitous
for the Republican Party, as the Democrats increased their House
majority from 239 to 291 a nd their Senate majority from 56 to

60. During the lame-duck session, 76 roll-call votes were taken
in the House and 85 in the Senate. Attendance at recorded votes was
85 percent in the House and 87 percent in the Senate. This compared
to an overall 87 pe rcent House and 86 percent Senate attendance
record during the entire 1974 session (January-December The House
conducted 14 percent of its business (seventy-six of 537 total
recorded votes) during the lame-duck session, while the Senate
conducted 16 perce nt of its business (eighty-five of 544 total
votes) during the lame-duck.

LAME-DUCK SESSIONS AND CONGRESSIONAL WORKLOAD The Twentieth
Amendment did not outlaw lame-duck sessions of Congress, but its
intention was to do away with any necessity for them. The re have
been twenty-two election years since the Twen tieth Amendment went
into effect in 19

35. Congress has convened eight lame-duck sessions over that
time, but only five of them were significant: 1942, 1944, 1950,
1970, 19

74. The first four of these were-years in which the United
States was involved in war. In 1942 and 1944, years in which the
United States was involved in a world war, only one major law was
passed by Congress in each lame-duck session. Watergate and the s
wearing-in of a new President and Vice President dominated
1974.

Of the five years in which a significant lame-duck session was
convened, only the war year of 1944 was a presidential election
year. In that year, President Roosevelt was re-elected with 81 p
ercent of the electoral vote. In the war years of 1942, 1944 and
1950, the Democratic Party controlled the presidency and both
houses of Congress. In 1970 and 1974, the.Republican Party held the
presidency while the Democrats controlled both houses of Con gress.
The lame-duck sessions in 197.0: and 1974 were largely the effects
of fierce antagonisms between Republican presidents and the
Democrat Congress.

Table A of the Appendix contains certain statistics about the
workload and productivity of Congress over the last decade.

It can be seen from the table that Congress commonly has had
much shorter sessions in election years than in odd-numbered
years.

On the other hand, it has been equally common for Congress to
Attendance records for entire year calculated by Congressional
Quarterly.

Lame-duck session attendance records by The Heritage Foundation.
8 pass-many more public laws in an election year than in a nonr
election year In some recent Congresses, the number of public laws
passed-during the second sess ions has been nearly double that of
the first session.

The 96th Congress seems to be breaking some of these recent
Compared with the first session of the 95th Congress, patterns the
number of public laws passed, measures passed, and measures
reported were down in the 96th'~ first session. The totals for the
same three categories for 1979 are also the lowest for any year in
the table session of a Congress to report more measures from
committee and pass more measures on the floor than the first
session it s e ems likely that the second session of the 96th
Congress, when completed will not follow this pattern. By the time
the second session of the 96th is completed, it is almost certain
that more public laws will have been passed than in the first
session. But the usually large disparity between the two sessions
will probably not occur.

The number of record votes for 1980 will probably.end up being
significantly lower than in any other recent year Whereas it has
been normal for the second BUDGETS OF RECENT YEARS The passage of
the Budget Control and Impoundment Act in 1974 was Congress'
decision to impose fiscal discipline, if not fiscal restraint, on
itself. Under the act, which did not take effect until Congress
began work on the.fisca1 year 1977 budget Congre s s is supposed to
pass by May 15 a first budget resolution with spending, taxing, and
deficit targets complete final passage of all appropriations bills
by the seventh day after Labor Day and pass a second budget
resolution with a binding spending ceiling, taxing floor, and final
deficit by September 15. After the fiscal year has begun on October
1, Congress cannot appropriate any more money without passing a new
budget resolution, an event that usually happens because
fluctuations in the economy automati c ally affect entitlement
spending going out of the government.

Table B of the Appendix outlines the results of the congres
sional budget process since the Budget Act took effect for fiscal
year 19

77. Again it seems that the 96th Congress is breaking from the
established pattern The 96th Congress has not met one of the budget
deadlines.

The budget for fiscal year 1980 was one month late, and the
budget for fiscal year 1981 will be much later than that. third
resolution for fiscal year 1980 was later than i n any previous
year. For fiscal years 1977, 1978, and 1979, the congres sional
estimates of expenditures and revenues did not vary signi ficantly
between the various budget resolutions of each year.

But there was a great disparity in both expenditures and
revenues between the first and third resolutions af fiscal 19

80. For fiscal 1981, the much-publicized projection of a
balanced budget lasted only until the'president's projection for
the second The 9 resolution one month later and only until the
Senate Budget Committee's projection for the second resolution nine
we e ks later. resolution as of the date of this Backgrounder
budgeted the greatest increases in both spending and taxes since
the budget process began and since the country began to the final
totals for fiscal year 1979 (estimated by.OMB the third budget reso
l ution for fiscal 1980 prescribed an $80 billion jump in spending
and a $70 billion jump in taxes. The Senate Budget Committee
projects another $60 billion increase in spending and a $90 billion
jump in taxes for fiscal year 1981 The House Budget Committee had
not agreed on a second Apart from the process itself, the 96th
Congress has also Compared CONCLUSION The 96th Congress has
considerably reduced the flow of new legislation tutional authority
over the public purse. The budget has begun to control Congr e ss,
rather than Congress the budget. Having refused to follow its own
disciplinary device, the budget process and having given over so
much of its fiscal authority to statutory increases in spending and
taxes, Congress has reached a stalemate with regard t o the budget
So, in the face of rising public anger about inflation taxation,
and government spending, and faced with a collapse of its own
budget process together with astonomical increases in taxes and
government spending, Congress has decided to take t h e
unprecedented step of postponing 50 percent of the 96th Congress
until after the elections of the major appropriations bills passed,
Congress will leave undone almost all the major decisions of the
second session of the 96th Congress antagonisms between the
Republican president and a Democrat Congress, has Congress ever
passed a significant percentage of its money legislation in a
lame-duck session new two-year terms having completed only half of
the work that they were elected to accomplish in their cur rent
terms. Members of the Senate will have little record of their last
year in office prior to standing for re-election.

The 96th Congress will reconvene in November with some perhaps
many, of those in attendance having been repudiated at the polls.
In ad dition to the entire budget for fiscal 1981, the lame-duck
Congress will consider other substantive legislation the SALT
treaty being one of the possibilities. With twenty-four
Democrat-held seats but only ten Republican-held seats up for
re-election in t h e Senate and with the Senate majority being only
59-41 in favor of the Democrats it is conceivable that the 1980
elections could transfer control of the Senate to the Republican
But it appears to be afraid to exercise its consti With no budget
resolution and not one Only in 1970, a war year and a year of
bitter In November, members of the House will stand for election to
10 Party.